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Jeffrey Weissman v. Radiology Associates of Ocala, P.A., et al., Case No. 5D13-2579 (5th DCA

In Weissman, the Fifth DCA reversed a trial court's order granting a new trial, and reinstated a jury verdict in favor of the plaintiff in a medical malpractice suit. Following entry of the verdict, the defendant radiology group conducted post-trial background investigations, leading to a motion to conduct juror interviews alleging material non-disclosure by several jurors. The trial court conducted juror interviews and later granted the radiology group's pending motion for new trial, finding that three jurors failed to disclose material information.

The Fifth DCA noted that the Florida Supreme Court has adopted a three part test to determine whether a juror's non-disclosure of information due voir dire warrants a new trial: (1) was the information relevant and material to jury service in the case; (2) did the juror conceal information during questioning; and (3) was the juror's failure to disclose information attributable to the complaining party's lack of diligence. The trial court found that each element of the test was met as to three jurors. The Fifth DCA disagreed.

As to the first juror, the radiology group argued that the juror failed to disclose her treatment and billing history with the radiology group. During voir dire, the defense asked whether any prospective juror had been to the radiology group, or had negative feelings about doctors, hospitals or healthcare providers. None of the prospective jurors responded affirmatively. After trial, the radiology group presented the court with documents showing that one of the jurors had been billed for services, and her bills went into collections. During the juror's interview, however, she testified that she had never been to the radiology group, she had never received services from the radiology group, she had never received bills from the radiology group, and she had never had bills from the radiology group go into collections. The Fifth DCA ruled that, in the absence of testimony otherwise, the radiology group failed to present any evidence that the juror concealed information, given that the radiology group failed to properly admit the documents into evidence. The radiology group had not presented any witness at the hearing to authenticate the documents.

As to the second and third jurors, the radiology group argued that each of them failed to disclose prior bankruptcy proceedings. The Fifth DCA noted that the prospective jurors were not specifically asked about bankruptcy filings. They were asked about litigation, as a plaintiff or a defendant, including any lawsuit involving credit issues. The Fifth DCA found that the radiology group's voir dire questions were too imprecise, potentially leaving prospective jurors to conclude that the radiology group was only asking about lawsuits. The Fifth DCA relied upon prior appellate opinions finding that in the absence of a definition of lawsuits, questioning may be too imprecise for prospective jurors to understand whether divorce or collection proceedings are inclusive. The Fifth DCA found that the questioning in Weissman was similarly imprecise, given that the defense did not ask about bankruptcy proceedings, but instead referenced plaintiff and defense, or having been sued, none of which are applicable in bankruptcy proceedings.

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